MY TAKE ON THE ALLEGED PROSCRIPTION OF IPOD

Much has been said about the alleged proscription of Indigenous People of Biafra (IPOB). No less a personality than the President of the Nigerian Senate, Dr. Bukola Saraki, has also weighed in on this issue. The issue has therefore become very controversial with divided opinions.

The governing law on proscription of organisation engaged in terrorism is Terrorism (Prevention) Act 2011 (as amended). Section 1(1) of the Act prohibits terrorism while 1 (2) defines activities that are classified as acts of terrorism. Section 2 provides for the process for proscribing organisations involved in acts of terrorism.

Two pronouncements from government authorities on Friday 15th September have led to the swell of opinions on the status of IPOB and legality or otherwise of those pronouncements.

Firstly, the Nigerian army in a statement by Maj.-Gen. John Enenche, the Director, Defence Information (DDI), said that the IPOB posed security challenge and had been metamorphosing from one stage to another and concluded by confirming that IPOB was a terrorist organisation. Quoting from the statement, it reads “After due professional analysis and recent developments, it has become expedient to notify the general public that the claim by IPOB actors that the organisation is non-violent is not true. Hence, the need to bring to public awareness the true and current state of IPOB. In this regard, some of their actions, clandestinely and actively, that have been terrorising the general public include: The formation of a Biafra Secret Service, claimed formation of Biafra National Guard, unauthorised blocking of public access roads and extortion of money from innocent civilians at illegal road blocks. Militant possession and use of weapons (stones, molotov cocktails, machetes and broken bottles, among others) on a military patrol on Sept. 10, 2017. Physical confrontation of troops by Nnamdi Kanu and other IPOB actors at a check point on Sept. 11, 2017 and also attempt to snatch their rifles. Attack by IPOB members on a military check point on Sept. 12, 2017, at Isialangwa, where one IPOB actor attempted to snatch a female soldier’s rifle. From the foregoing, the Armed Forces of Nigeria wish to confirm to the general public that IPOB from all intent, plan and purpose as analysed, is a militant terrorist organisation’’. Note, nowhere was the phrase “declare” or “proscribe” used.

Shortly after this, the governors of the South- east zone of the country rose from a meeting and announced that they have proscribed the “activities of IPOB”. In their communiqué, they announced that: “In view of the prevailing security situation in the South-East and its attendant consequences, the South-East Governors hereby resolved as follows:

“All the activities of IPOB are hereby proscribed. IPOB and all other aggrieved groups are advised to articulate their position on National issues and submit to the committee of Governors, Ohanaeze Ndigbo and National Assembly members from the South-East zone through the Chairman of South-East Governors Forum”. (emphasis mine).

It should be noted that neither the statement from the army nor the communiqué of the governors proscribed IPOB. While the governors merely proscribed the activities of IPOB, it did not proscribe IPOB. In similar vein, the army statement did not use the word “proscribe” or “declare”. It merely warned the public that, going by the activities that IPOB started carrying out; it was a militant terrorist organization. That being the case, the controversy generated by the alleged proscription is needless.

On legal steps for proscribing organisations involved in acts of terrorism, Section 2 of the Terrorism (prevention) Act, clearly provides:

(1). Where two or more persons associate for the purpose of or where an organization engages in –

(a) Participating or collaborating in an act of terrorism;

(b) Promoting, encouraging or exhorting others to commit an act of terrorism; or

(c) Setting up or pursuing acts of terrorism, the judge in Chambers may on an application made by the Attorney General, National Security Adviser or Inspector General of Police on the approval of the President; declare any entity to be a proscribed organization and the notice should be published in official gazette.

(2) An order made under sub-section (1) of this section shall be published in the official gazette, in two National newspapers and at such other places as the judge in Chambers may determine.

It is conceded that the pronouncement from the army and the governors did not follow this process. However, since the statements did not claim to be proscribing the organization called IPOB, the issue of their compliance with Section 2 is irrelevant. That discussion is merely an academic exercise. What they did at best was to proscribe activities of IPOB, not IPOB itself. In fact, the army has come up with a new announcement that they did not declare IPOB as a terrorist organization.

In my view, what happened was a coordinated effort by the authorities (the army and the governors) to stem the tide of violence and lawlessness going on in the region. It was to preempt a break down in law and order, that was dangerously degenerating into inter-tribal attacks and killings, similar to what happened in Rwanda some years ago. I think the authority could ill-afford the possible delay and lack of surprise element that following the constitutional process of proscription will engender. The scenario the army and governors tried to prevent can be likened to the following anecdote from my good friend, Obinna Anaba:

I employ my gateman, Umaru. I pay Umaru to guard my house. I even arm Umaru with whistle, bow, arrows and small jazz to make him effective – sight, catch and eliminate any thief man! Then this Saturday, agile Umaru sights a man scaling my fence and dutifully goes after the intruder blowing his whistle and setting his bow and arrow for the kill! Yours truly suddenly jumps out of bed. No No No Umaru. You can’t do that. You don’t have the powers to declare the intruder a thief. No! I have to convene a meeting of my household in the morning and we will determine whether or not he is a thief. Then we can allow you go after him.

Subtext: Umaru has resigned. His reason. My Oga, that’s me, is a very stupid man.

From the analysis above, what the army and the governors did, in my view, did not amount to acting illegally or unconstitutionally, as they did not proscribe IPOB. Rather, they did what any responsible government will do to safeguard lives and properties, giving the fast degenerating situation. They were able to douse the tension and fear created and stopped the wanton destruction of lives and properties that was already taking place in the south east and possible reprisal attacks in the northern part of the country. To back up the action taken, it is being speculated in the news media, at the time of writing this article, that the Nigerian President, General Muhammadu Buhari, has now given approval to the Attorney-General to take action to formally proscribe IPOB, in line with the provision of the Terrorism (Prevention Act).

Sesan Akinsanya is a multi-skilled commercial lawyer with substantial legal experience, especially in the Oil and Gas industry, having worked as a lawyer with Shell for about 20 years. Sesan has LL. B. from the University of Lagos in1984 and was called to the Nigerian Bar in 1985. He is a Fellow of the Institute of Chartered Accountants of Nigeria; Fellow of the Chartered Institute of Arbitration, London; Fellow of the Institute of Chartered Secretaries and Administrators, London; and Member of the Chartered Institute of Purchasing and Supply, London.

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